The Role of Rehab Experts after Ogilvie II
Vocational experts seem to have gotten pretty well trampled by the recent Ogilvie I and Almaraz/Guzman I en banc decisions. The Ogilvie II and Almaraz/Guzman II en banc decisions didn’t do them any favors either.
As far as I can tell, the WCAB1 in Ogilvie II basically flip flopped on the role of vocational experts. Under Ogilvie I at least one very entrepreneurial vocational counselor was making money performing the Ogilvie I formula adjustments and offering to testify to support their findings.2
The Workers’ Compensation Appeals Board in Ogilvie II has very explicitly stated that vocational experts are not necessary when it comes to performing the Ogilvie I formula adjustment – since it is an objective and retrospective calculation.
This leaves open the question of whether vocational expert testimony is only relevant when defending against an Ogilvie argument.